Thomas Potter, III

Thomas Potter, III

Burr & Forman

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DOL Temporarily Forbears Enforcement of Fiduciary Duty Rule

The Department of Labor’s “fiduciary duty” Rule continues to get more bollixed up. DOL announced a temporary enforcement policy that will give a “free pass” for any violations (a) in the gap between effective date and delay,...more

3/13/2017 - Best Interest Contract Exemptions DOL Employee Benefits ERISA Fiduciary Duty Fiduciary Rule Investment Adviser Retirement Plan

SEC to Propose "Requiring" Municipal-Issuers to Disclose Bank Loans

The two remaining SEC Commissioners agreed March 1 to propose amendments “requiring” municipal securities issuers to disclose non-security financial obligations and material events occurring in other outstanding obligations....more

3/6/2017 - Bank Loan Markets Disclosure Requirements Financial Sector MSRB Municipal Securities Issuers Rule 15c2-12 SEC Tower Amendment

DOL Proposes 60-Day Delay of Fiduciary Rule

The US Department of Labor today proposed a 60-day extension (through June 9) for the effective date of its Fiduciary Duty Rule and related exemptions. The extension would give DOL some time to complete the re-analyses...more

3/2/2017 - Conflicts of Interest DOL Employee Benefits Fiduciary Duty Fiduciary Rule Financial Adviser Investment Adviser Regulatory Reform Retirement Plan Trump Administration

Banking & Financial Services E-Note - February 2017

The White House clarified that Trump’s January 30 “two for one” Executive Order doesn’t apply to the SEC and other independent regulatory agencies, Reuters reported. Despite press coverage, the Order doesn’t actually require...more

2/24/2017 - Banking Sector Consumer Bankruptcy Consumer Lenders Deregulation Dodd-Frank Financial Sector Financial Services Industry Military Lending Act Regulatory Agencies Regulatory Agenda Regulatory Oversight SEC Trump Administration Two For One Rule

DOL Fiduciary Rule Still On for April 10 Implementation

The Department of Labor’s Fiduciary Duty Rule remains on track for April 10 implementation, notwithstanding a maelstrom of hype about it. Nearly everyone expected the new administration would delay the Rule – and many...more

2/9/2017 - DOL Employee Benefits ERISA Fiduciary Duty Fiduciary Rule Investment Adviser Pensions Retirement Retirement Plan Trump Administration

FINRA to Require Web-Based Arbitration Filings

Effective April 3, 2017, all FINRA arbitration participants (except pro se parties) must use FINRA’s web-based DR-Portal to file and serve documents in both customer and industry arbitrations. ...more

2/8/2017 - Arbitration Electronic Filing Filing Requirements Financial Markets Financial Sector FINRA Investment Mediation Portal Pro Se Litigants SEC Securities

Trump's "Two for One" Regulation Order Excludes SEC, Maybe All of Dodd-Frank

The White House clarified that Trump’s January 30 “two for one” Executive Order doesn’t apply to the SEC and other independent regulatory agencies, Reuters reported. ...more

2/2/2017 - Dodd-Frank Executive Orders Financial Markets Financial Sector OMB Regulatory Oversight SEC Trump Administration

Corporate E-Note - January 2017

The IRS has announced it will begin treating certain syndicated conservation easement transactions and “substantially similar” transactions as “listed transactions.” Notice 2017-20 published on December 23, 2016 (the...more

1/31/2017 - 1099s Antitrust Provisions Conservation Easements Damages DOJ Economic Development Financial Markets Financial Sector FTC Human Resources Professionals Intellectual Property Protection IRS Patent Infringement Patents S-Corporation SEC Securities Trump Administration

Moody’s Settles RMBS/CDO Ratings Claims with DOJ, States

After markets closed on Friday the 13th, the U.S. Department of Justice (“DOJ”) announced an $864 million settlement regarding Moody’s credit ratings of residential mortgage-backed securities (“RMBS”) and collateralized debt...more

1/19/2017 - Civil Monetary Penalty Collateralized Debt Obligations Cooperative Compliance Regime Credit Rating Agencies Credit Ratings DOJ Financial Crisis Financial Markets Financial Sector FIRREA Moody's Rating Agencies RMBS Securities Securities Violations Settlement

VW's $4.3BN Plea to Obstruction for Botched Litigation Hold

One of three counts in Volkswagen’s recent $4.3 billion guilty-plea was for obstruction of justice arising from a litigation-hold botched by house counsel. As VW prepared to admit the defeat-device problems to US...more

1/19/2017 - Auto Manufacturers Automotive Industry Carbon Emissions Compliance Criminal Prosecution Document Destruction DOJ FCPA Litigation Hold National Emissions Standards Obstruction of Justice Volkswagen White Collar Crimes

Supreme Court to Review SEC Enforcement Limitations

On Friday, January 13, the Supreme Court granted certiorari to resolve a Circuit split on the extent to which SEC enforcement actions are restricted by the five-year statute of limitations in 28 U.S.C. § 2462. Section...more

1/16/2017 - Civil Monetary Penalty Discovery Rule Disgorgement Enforcement Actions Forfeiture Gabelli v SEC Injunctive Relief SCOTUS SEC Securities Violations Statute of Limitations

SEC’s 2017 Exam Priorities

OCIE released its 2017 exam priorities on January 12. The priorities list was most notable for being shorter than prior years. But that likely means only more focus, rather than less vigor....more

1/13/2017 - BSA/AML Cybersecurity ETFs Financial Markets Financial Sector FINRA Investment Investment Adviser Money Market Funds Municipal Advisers OCIE Pensions Private Funds Recidivism Retail Investors SEC SEC Examination Priorities

SEC Scores First Muni Issuer's Admission of Wrongdoing

The Port Authority of New York and New Jersey has admitted wrongdoing and agreed to pay a $400,000 penalty to settle SEC charges that it failed to adequately disclose project risks to investors purchasing $2.3 billion in...more

1/11/2017 - Bonds Enforcement Actions Financial Markets Municipal Bonds Penalties Port Authority Risk Alert SEC Securities Securities Violations

FINRA’s 2017 Regulatory & Exam Priorities

On January 4, new President and CEO Richard Cook issued FINRA’s Annual Regulatory and Examination Priorities Letter. This year’s list in summary is: New for 2017: Targeted electronic off-site reviews “on select...more

1/6/2017 - Big Data BSA/AML Cybersecurity Financial Markets Financial Sector FINRA Industry Examinations Liquidity Risk Management Rule Market Manipulation Mutual Funds Regulatory Agenda REIT Risk Management Risk Mitigation Securities Spoofing

Circuits Split - Tenth Holds SEC ALJs Unconstitutional

The Tenth Circuit recently held that the SEC’s in-house judges are “inferior officers” hired in violation of Article II’s Appointment Clauses, creating a split with the D.C. Circuit over the issue. The Tenth Circuit held...more

12/30/2016 - Administrative Proceedings ALJ Appointments Clause Article II Constitutional Challenges Enforcement Actions SEC

6th Circuit Orders Pay-to-Play Challenge to Merits Panel

The Sixth Circuit this week declined the SEC’s request to dismiss a Constitutional challenge to the new MSRB pay-to-play rules. Instead, the Court ordered the case to a merits panel for consideration. The Republican parties...more

12/8/2016 - Administrative Merits Determinations Campaign Contributions Constitutional Challenges MSRB Pay-To-Play Public Officials SEC

Supremes Reaffirm Dirks Gifting Theory of Insider Trading; Limit Newman

A unanimous Supreme Court reaffirmed the “gifting” theory of insider trading under Dirks and rejected Newman “to the extent” it required more. The Court’s long-standing rule in Dirks v. SEC, 463 U.S. 646, 664 (1983)...more

12/7/2016 - Confidential Information Dirks v SEC Financial Markets Illegal Tipping Insider Trading Non-Public Information Personal Benefit SCOTUS Securities Violations Tippees Tippers US v Newman US v Salman

FINRA’s Cross-Selling Sweep Exam

In late October, FINRA issued a sweep exam, commanding firms to produce 15 categories of documents about firm’s cross-selling programs over a 5-year span. The sweep seeks information on cross-selling, including incentives...more

11/10/2016 - Broker-Dealer Cross-Selling Financial Sector FINRA Industry Examinations

PIABA Slams Broker-Check Again

The Public Investors Arbitration Bar Association (PIABA) renewed its criticism of FINRA’s Broker-Check® system in a report issued in late October. PIABA was especially critical of the system’s: Lack of synchronization...more

11/9/2016 - Brokers Databases Financial Markets Financial Sector FINRA Investment Investors

Banking & Financial Services E-Note - October 2016

Burr & Forman lawyers won a significant victory in the Eleventh Circuit earlier this month. In the case In re: David A. Failla, the U.S. Court of Appeals for the Eleventh Circuit affirmed that a person who agrees to...more

10/31/2016 - ATDS Banks Bond Financing Consumer Bankruptcy Debt Collection Dodd-Frank FDCPA Financial Institutions Financial Sector Foreclosure Investment Management Midland Funding v Johnson Mortgage Lenders Mortgages Retirement Shopping Centers TCPA Time-Barred Debt

6th Circuit Orders Pay-to-Play Challenge to Merits Panel

The Sixth Circuit this week declined the SEC’s request to dismiss a Constitutional challenge to the new MSRB pay-to-play rules.  Instead, the Court ordered the case to a merits panel for consideration.  The Republican parties...more

10/10/2016 - Administrative Merits Determinations Broker-Dealer Financial Markets Financial Sector Investment Adviser Motion to Dismiss MSRB Municipal Advisers Pay-To-Play SEC Securities

Tilton Tilts at SEC Enforcement, Again

Having lost her initial suit (and appeal) to enjoin an SEC administrative enforcement action against her, the so-called “diva of distressed,” Lynn Tilton recently filed another lawsuit trying to halt her upcoming October 24...more

9/14/2016 - Administrative Proceedings ALJ Appointments Clause Due Process Enforcement Actions Fifth Amendment SEC Securities Litigation

Tennessee Securities Division Ramps Up Enforcement

The Securities Division of Tennessee’s Department of Commerce and Industry has increased its enforcement activity during 2016. The recent actions include: Final Administrative Orders: Clifton Alexander and HugeROI.com...more

9/13/2016 - Broker-Dealer Cease and Desist Orders Consent Order Enforcement Actions Financial Markets Financial Sector Investment Adviser Securities Securities Violations

SEC Fines Company for Agreements Restricting Whistleblowers

The SEC has fined an Atlanta company $265,000 for using various severance agreements restricting whistleblower activities. The Dodd-Frank Act added ’34 Act § 21F encouraging whistleblower programs. The SEC adopted Rule...more

9/12/2016 - BlueLinx Holdings Confidential Information Dodd-Frank Employer Liability Issues Government Agencies Government Investigations Hiring & Firing Popular SEC Severance Agreements Whistleblower Protection Policies Whistleblowers

SEC Approves FINRA & MSRB (Almost) Pay-to-Play Rules

The SEC announced August 25 that it approved FINRA’s pay-to-play rules governing placement-agent or solicitor broker-dealers and was “prepared” to approve the extension of MSRB Rule G-37 to municipal advisors as well....more

9/8/2016 - Broker-Dealer Dodd-Frank Financial Markets FINRA Investment Adviser MSRB Municipal Advisers Pay-To-Play Rule 206(4)-5 Rule G-37 SEC Securities

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